Blue v. River Rouge, City of et al

Filing 53

OPINION AND ORDER (1) Sustaining in Part and Overruling in Part Plaintiff's Objections (Dkt. 50 ), (2) Accepting in Part and Rejecting in Part the Recommendation in the Magistrate Judge's Report and Recommendation (Dkt. 49 ), (3) Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (Dkt. 23 ), and(4) Granting Defendants' Motion to Dismiss (Dkt. 23 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SEXUAL SIN DE UN ABDUL BLUE,
Plaintiff,

Civil Action No. 16-CV-10526
HON. MARK A. GOLDSMITH

vs.
CITY OF RIVER ROUGE, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
(1) SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF’S
OBJECTIONS (Dkt. 50), (2) ACCEPTING IN PART AND REJECTING IN PART THE
RECOMMENDATION IN THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (Dkt. 49), (3) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt. 23), AND
(4) GRANTING DEFENDANTS’ MOTION TO DISMISS (Dkt. 23)
Plaintiff Sexual Sin De Un Abdul Blue, proceeding pro se, filed this civil rights case against
Defendants pursuant to 42 U.S.C. § 1983, alleging false arrest and other claims. The claims stem
from his arrest for trespass during the course of a landlord-tenant dispute in which Blue’s tenant
claimed that Blue wrongfully evicted her. See Am. Compl. (Dkt. 19).
The matter was referred to Magistrate Judge Mona K. Majzoub for all pretrial proceedings.
See Order of Referral (Dkt. 7). The magistrate judge issued a Report and Recommendation
(“R&R”) (Dkt. 49), recommending that Defendants’ motion for summary judgment on Claims 15 and motion to dismiss Claims 6 and 7 (Dkt. 23) be granted.1 Blue filed an objection to the R&R
(Dkt. 50). Defendants subsequently filed a response (Dkt. 52). The Court reviews de novo any
portion of the R&R to which specific objections are filed. Fed. R. Civ. P. 72(b)(3). For the reasons
1

Claims 1-5 allege false arrest, false imprisonment, malicious prosecution, wrongful use of
judicial process, and interference with a contractual relationship; Counts 6 and 7 request costs and
attorney fees.
1

discussed below, the Court accepts in part and denies in part the recommendation contained in the
R&R, grants in part and denies in part Defendants’ motion for summary judgment, and grants
Defendants’ motion to dismiss.
I. BACKGROUND
In May 2012, Blue began renting an apartment located at 50 Orchard Street in Ecorse,
Michigan, to Jennifer Gondenoky. 3/22/13 Hr’g Tr., Ex. 1 to Pl. Resp., at 6 (Dkt. 35-1). In
February 2013, Blue initiated an eviction proceeding in Michigan’s 25th District Court for
nonpayment of rent. Am. Compl. ¶ 9. At the conclusion of a March 22, 2013 eviction hearing,
the court entered a judgment ordering Gondenoky to pay Blue $2,436. Judgment, Ex. 1 to Defs.
Mot., at 2 (cm/ecf page) (Dkt. 23-3). The judgment stated that if Gondenoky did not pay that
amount to Blue by April 30, 2013, the court would issue a writ of eviction, provided that Blue
presented proof to the court that he had paid to have the property inspected. Id.
In a sworn affidavit, Blue states that on March 28, 2013, he and Gondenoky executed an
agreement for Gondenoky to surrender the apartment immediately. Pl. Aff., Ex. A. to Pl. Resp.,
¶ 3 (Dkt. 35); see also 3/28/13 Agreement, Ex. C. to Pl. Obj., at 7 (cm/ecf page) (Dkt. 50). The
alleged agreement states that on March 28, 2013, Gondenoky vacated the apartment and “returned
possession of the premises to the owner.” 3/28/13 Agreement at 7 (cm/ecf page).
On March 31, 2013, Officer Edward Otis of the River Rouge Police Department was
dispatched to 50 Orchard Street to investigate a landlord-tenant dispute. See 3/31/13 Police
Report, Ex. 2. to Defs. Mot., at 3 (Dkt. 23-4). Upon arriving at the apartment, Otis observed “a
large pile of furniture, clothing, children toys [sic], and other miscellaneous items on the sidewalk”
in front of the property. Id. Otis then spoke with the complainant, Ryan Gregory, who informed
Otis that he lived in the apartment with his fiancée, Gondenoky, and that the items on sidewalk

2

belonged to them. Id. Gregory told Otis that Blue had moved the items there without any advance
notice or permission. Id. Contrary to Gregory’s version of the events, Blue states that none of
Gondenoky’s property was in the apartment on March 31, 2013, because she had already moved
out on March 28, 2013 pursuant to their agreement. Pl. Aff. ¶ 5.
Otis then went inside the apartment to speak with Blue. Id. Although Blue states that he
presented Otis with a copy of a quitclaim deed as proof of his ownership of the property, Pl. Aff.
¶ 4, Otis stated in his police report that he was not provided with this documentation, 3/31/13
Police Report at 3. In an unsworn declaration, Otis states that Blue also did not provide him with
a court order permitting him to evict Gondenoky and Gregory. Otis Decl., Ex. 18 to Defs. Reply,
¶ 7 (Dkt. 38-9). Blue and Otis agree that Blue showed Otis a copy of the purported agreement
between Blue and Gondenoky in which Gondenoky agreed to surrender the apartment. Id.; Pl.
Aff. ¶ 4. Otis then advised both Blue and Gregory that they needed to resolve the matter in court.
3/31/13 Police Report at 3. Otis told Blue not to return to the property “without the proper eviction
documentation.” Otis Decl. ¶ 6.
Otis did not return to court, but the next day Gondenoky did. At a hearing on the morning
of April 1, 2013, Gondenoky complained to the state judge that Blue had evicted her, thrown her
belongings on the street, and broken her daughter’s bed. 4/1/13 Hr’g Tr., Ex. 15 to Defs. Reply,
at 4-5 (Dkt. 38-6). In regard to the purported agreement to surrender the apartment, Gondenoky
testified that Blue “was trying to trick me just to get my signature.” Id. at 8.2 At the conclusion

Gondenoky elaborated on this at a subsequent hearing, on April 11, 2013, claiming that the
purported agreement to surrender the apartment was not the agreement she had signed with Blue.
4/11/13 Hr’g Tr., Ex. 16 to Defs. Reply, at 8 (Dkt. 38-7). While Gondenoky conceded that she
signed the agreement, she testified that the text of the agreement had been altered after she signed.
Id. Gondenoky testified that the original agreement gave her 30 days from March 28, 2013 to
surrender the apartment; the agreement presented by Blue stated that Gondenoky vacated the
premises that day. Id.
2

3

of the April 1, 2013 hearing, the court stayed the writ of execution and set a hearing regarding
wrongful eviction. 4/1/13 Hr’g Tr. at 8. However, nothing in the records shows that Otis or other
officers knew that Gonenoky disputed the validity of the agreement or that the state court had set
a wrongful eviction hearing.
At 5:30 p.m. on April 1, 2013, while on patrol in the area, Otis observed Blue back in the
apartment. 4/1/13 Police Report, Ex. 3 to Defs. Mot., at 4 (Dkt. 23-5). Otis and Defendant Officer
Copeland subsequently approached the home. As Otis knocked on the front door of the apartment,
he heard someone going down the basement stairwell. Id. After knocking again, Otis and
Copeland were met by two individuals, Nolan Hardie and Jasmine Smith, who claimed that they
were the apartment’s new tenants. Id. While the officers were informed that Blue was not on the
premises, they heard noise coming from the basement of the apartment. Id. Upon entering the
basement, Copeland found Blue behind a furnace and escorted him to the front door. Id. Otis then
asked Blue if he had “any judicial paperwork that allowed him to enter” the apartment. Id. Blue
responded by telling Otis that his lawyer advised him that he could go into the apartment. Id.
When asked why he was hiding in the basement, Blue refused to answer. Id. Otis then advised
Blue that he was under arrest. Id.
II. ANALYSIS
A. Blue’s Objections
Blue first contends that he was not provided with notice that he would be subject to arrest
for trespassing upon his own property and, without such notice, he could not have been trespassing.
Pl. Obj. at 4 (cm/ecf page). Blue also objects to the magistrate judge’s conclusion that there was
probable cause to arrest him. Id. Within his objection, Blue makes a cursory argument that the
state district court judge “impermissibly entered a guilty plea on behalf of the Plaintiff in the

4

Trespass case in an attempt to cover up the false arrest.” Id. Blue also argues that Otis improperly
brought the trespass charge against him and questions the wisdom of preventing landlords from
negotiating with tenants during the course of evictions proceedings. Id. Blue requests that this
Court reject the magistrate judge’s R&R and proceed to trial. Id.
B. Discussion
A court must grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “In making this determination, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v.
Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 (1986). In considering the material facts in the record, the court must
recognize that “[t]he mere existence of a scintilla of evidence in support of the [movant]’s position
will be insufficient; there must be evidence on which the jury could reasonably find for the
[movant].” Id. at 422. Furthermore, the movant “cannot rely on conjecture or conclusory
accusations.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).
1. Notice
In his objection, Blue argues that the elements of trespass were not met because he did not
receive notice that entering the apartment would constitute trespassing. Michigan law prohibits a
person from entering “the lands or premises of another without lawful authority after having been
forbidden to do so by the owner or occupant or the agent of the owner or occupant.” Mich. Comp.
Laws § 750.552(1)(a). It is also illegal to “[r]emain without lawful authority on the land or

5

premises of another after being notified to depart by the owner or occupant or the agent of the
owner or occupant.” Mich. Comp. Laws § 750.552(1)(b).
Blue’s contention — that he was required to receive notice that he would be subject to
arrest for trespassing if he entered the apartment — is erroneous. The statute merely requires that
the individual enter the premises “after having been forbidden to do so by the owner or occupant.”
Mich. Comp. Laws § 750.552(1)(a). This means that the individual must be on notice that he may
not enter the premises. There is no requirement in the statute that the individual be apprised of the
legal consequences of reentering the property before he can be arrested for trespassing. This
objection is without merit.3
2. Probable Cause
Blue next argues that there was no probable cause for his arrest. See Pl. Obj. at 4 (cm/ecf
page). “A police officer determines the existence of probable cause by examining the facts and
circumstances within his knowledge that are sufficient to inform ‘a prudent person, or one of
reasonable caution,’ that the suspect ‘has committed, is committing, or is about to commit an
offense.’” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (quoting Michigan v. DeFillippo,
3

Although Blue claims he had a right to be on the property as its owner, Pl. Obj. at 2 (cm/ecf
page), his status as owner of the property does not immunize him from liability for trespass. A
landlord can be held liable for trespass under civil law. Maney v. Lamphere, 102 N.W. 974 (Mich.
1905) (holding that landlord committed a trespass when he entered property while tenant was still
in lawful possession). While recognizing a landlord’s ongoing claim to title, the law of trespass
protects the tenant’s possessory interest, which is distinct from title. Radvansky v. City of Olmsted
Falls, 395 F.3d 291, 303 (6th Cir. 2005) (“Trespass is an invasion of the possessory interest of
property, not an invasion of title.”). Like the law of other states, Michigan law protects the tenant’s
possessory interest by restricting the entry of landlords onto leased premises during a dispute with
a tenant. See Mills v. Cnty. of Lapeer, 498 F. App’x 507, 513 (6th Cir. 2012) (“Michigan has a
clearly expressed public policy in favor of eviction by judicial process in nearly all situations.”);
see also Folgueras v. Hassle, 331 F. Supp. 615, 624-625 (W.D. Mich. 1971) (“‘[The tenant] is
owner of an estate for the time being, and has all the usual rights and remedies of an owner to
defend his possession.’”) (quoting Morrill v. Mackman, 24 Mich. 279, 284 (1872)). Given this
authority, Blue’s contention that he is somehow insulated from the reach of Michigan’s criminal
trespass law is without merit.
6

443 U.S. 31, 37 (1979)). “In general, the existence of probable cause in a § 1983 action presents
a jury question, unless there is only one reasonable determination possible.” Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995).
Because the Court concludes that a reasonable jury could find that Defendant officers
lacked probable cause, Defendants are not entitled to summary judgment. In his March 31, 2013
police report, Otis stated that he was dispatched to the apartment to address a landlord-tenant
dispute. 3/31/13 Police Report at 3. When he arrived at the scene, Otis was informed by Gregory
that Blue had removed his and Gondenoky’s belongings from the apartment without permission
or forewarning. Id.
After observing furniture and other belongings on the sidewalk, Otis went inside the
apartment to speak with Blue. Id. When Otis asked Blue what was going on, Blue presented him
with the March 28, 2013 agreement between him and Gondenoky in which Gondenoky
purportedly agreed to immediately vacate the premises. Id. While Gondenoky later testified that
Blue had tricked her into signing the agreement by altering its text after she signed, Otis was
unaware of this fact when he encountered Blue on March 31, 2013 or April 1, 2013. 4/1/13 Hr’g
Tr. at 8; 4/11/13 Hr’g Tr. at 8.
Without making an attempt to ascertain whether the agreement was enforceable, Otis
ordered Blue not to return to the property without a court order. 3/31/13 Police Report at 3. The
Court is unaware of any authority that allows an officer to order a landlord to obtain a writ of
eviction after the landlord has presented an agreement for the tenant to vacate the premises.
Indeed, the March 22, 2013 judgment from the state district court only required Blue to obtain a
writ of eviction if Gondenoky failed to pay rent or surrender the apartment by April 30, 2013.
Judgment at 2 (cm/ecf page). The March 28, 2013 agreement presented to Otis indicated that

7

Gondenoky had voluntarily surrendered the apartment.

While Otis states in his unsworn

declaration that he learned from the River Rouge Building Department on March 31, 2013 that
Blue no longer owned the property, Otis Decl. ¶ 5, he does not indicate whether he inquired
regarding a potential right of redemption or asked Blue whether he had title to the property.4
Further, Otis’s declaration does not indicate whether he determined who the actual owner was, and
whether, as required for liability under the trespassing statute, that owner instructed Blue not to
enter or remain on the property. Moreover, neither Gregory nor Gondenoky complained to anyone
— and certainly not to Otis — that Blue was not the lawful owner of the property.
Because there is more than one reasonable determination regarding the existence of
probable cause, this question must be decided by the trier of fact. Pyles, 60 F.3d at 1215.
3. Qualified Immunity
Defendant officers assert that even if they lacked probable cause to arrest Blue, they are
entitled to qualified immunity.5 Pl. Br. at 14 (Dkt. 23-1). Once a defendant raises a qualified
immunity defense, the plaintiff bears the burden of demonstrating that it does not apply. Rodriguez
v. Passinault, 637 F.3d 675, 689 (6th Cir. 2011). In order to defeat a defense of qualified immunity,
the plaintiff must satisfy the following two-part test: (i) first, that the defendant violated a
constitutional right, and (ii) the right at issue was “clearly established” at the time of the
misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled in part by Pearson v. Callahan,
4

Defendants have presented evidence that the property was forfeited to the Wayne County
Treasurer for failure to pay property taxes on March 1, 2013, and that the property became “titled
absolutely” in the treasurer’s name on March 31, 2013. 3/31/13 Certificate of Forfeiture, Ex. 8 to
Defs. Mot., at 3 (cm/ecf page) (Dkt. 23-10). However, as noted above, there is no evidence
indicating that Otis was aware of this fact at the time he placed Blue under arrest.

5

The magistrate judge did not reach a conclusion regarding qualified immunity after determining
that Defendant officers had probable cause to arrest Blue. See R&R at 15 (“Defendants are
therefore entitled to summary judgment on Claims 1-3 of the First Amended Complaint and do not
need qualified immunity.”).
8

555 U.S. 223, 236 (2009)). While the Court in Saucier mandated that the two steps be addressed
in order, the Court in Pearson held that courts have discretion regarding which step to address first.
Id. at 236.
As noted above, the facts before this Court indicate that a trier of fact could reasonably
determine that Defendant officers violated Blue’s constitutional right when they arrested him
without probable cause. Blue must next demonstrate that this right was clearly established at the
time of his arrest. “A right is clearly established if there is binding precedent from the Supreme
Court, the Sixth Circuit, the district court itself, or other circuits that is directly on point.”
Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002). “This is not to say that an official
action is protected by qualified immunity unless the very action in question has previously been
held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.”
Skovgard v. Pedro, 448 F. App’x 538, 546 (6th Cir. 2011) (quotation marks omitted). “If the
plaintiff can establish that a constitutional violation occurred, a court should ask ‘whether the right
was clearly established . . . in light of the specific context of the case, not as a broad general
proposition.’” Lyons v. City of Xenia, 417 F.3d 565, 571 (6th Cir. 2005) (quoting Saucier, 533
U.S. at 201).
Courts in this circuit have consistently held that the right to be free from an arrest lacking
probable cause is clearly established. See Sutton v. Metro. Gov’t of Nashville & Davidson Cnty.,
612 F. App’x 308, 317 (6th Cir. 2015) (“At the time of Sutton’s arrest, the law was clearly
established that an officer needed probable cause, i.e., a reasonable belief that the plaintiff had
committed a crime, based on the totality of the circumstances, including both inculpatory and
exculpatory evidence.”); see also McMorris v. Fries, No. 14-CV-11134, 2015 WL 3915817, at *5
(E.D. Mich. June 25, 2015) (“Long before the incident here occurred in December 2013, ‘the law

9

was clearly established that, absent probable cause to believe that an offense had been committed,
was being committed, or was about to be committed, officers may not arrest an individual.’”)
(quoting Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999)). As a result, it cannot
be said that Defendant officers are entitled to qualified immunity.
4. Malicious Prosecution
Blue also argues that Otis improperly brought the trespass charge against him. In order to
succeed on a malicious prosecution claim premised on a Fourth Amendment violation, a plaintiff
must show that (i) a criminal prosecution was initiated against him and that the defendant made,
influenced, or participated in the decision to prosecute, (ii) there was a lack of probable cause for
the prosecution, (iii) the plaintiff was deprived of liberty apart from the initial seizure, and (iv) the
prosecution was resolved in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308-309 (6th
Cir. 2010).
As noted in the R&R, Blue’s malicious prosecution claim against Defendant officers fails
because he has not presented any evidence that the officers made, influenced, or participated in the
decision to prosecute. All of the evidence presented against Defendant officers pertains to their
actions while placing Blue under arrest, not whether they played any role in Blue’s prosecution.
As a result, Blue’s malicious prosecution claim fails.6
5. State-Law Claims
Because Blue’s pendent state law claim of wrongful use of judicial process is also based
on the criminal prosecution of Blue, rather than his arrest, this claim also fails. See Wallace v.
Kato, 549 U.S. 384, 390 (2007) (“If there is a false arrest claim, damages for that claim cover the

6

Blue also argues that the state district court judge impermissibly entered a guilty plea on his
behalf. Pl. Obj. at 4 (cm/ecf page). However, Blue has not named the judge as a defendant in this
case.
10

time of detention up until issuance of process or arraignment, but not more. From that point on,
any damages recoverable must be based on a malicious prosecution claim and on the wrongful use
of judicial process rather than detention itself.”).
However, the Court rejects the magistrate judge’s recommendation to dismiss Blue’s claim
for interference with a contractual relationship. “The elements of tortious interference with a
contract are (1) the existence of a contract, (2) a breach of the contract, and (3) an unjustified
instigation of the breach by the defendant.” Health Call of Detroit v. Atrium Home & Health Care
Servs., Inc., 706 N.W.2d 843, 848-849 (2005). There is evidence in the record to support the
existence of a lease between Blue and Hardie and Smith. Otis stated that when he went to the
property on April 1, 2013, he encountered Hardie and Smith, who claimed they were Blue’s new
tenants. 4/1/13 Police Report at 4. After Otis placed Blue under arrest, he ordered Hardie and
Smith to remove their things from the apartment until the matter was resolved in court. Id. This
constituted a breach of the lease. Further, because a reasonable jury could find that Defendant
officers lacked probable cause for Otis’s arrest, it could find that the officers’ instigation of the
breach was unjustified. It follows that if Blue’s arrest was unjustified, instigating the breach of
Blue’s new lease was unjustified as well. As a result, Blue’s claim for tortious interference with a
contractual relationship survives summary judgment.
C. Failure to Object
Because Blue does not contest the magistrate judge’s recommendation to dismiss Claims
6 and 7 in his objection, the Court adopts the R&R regarding the dismissal of those claims. See
Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002) (“As to the parts of the report and
recommendation to which no party has objected, the Court need not conduct a review by any
standard.”). Blue has also failed to object to the dismissal of the River Rouge Police Department,

11

the City of River Rouge, and John Does 1-10; the Court therefore adopts the R&R regarding
dismissal of those parties. Similarly, Defendants have not objected to the magistrate judge’s
recommendation that their request for attorney fees be denied. As a result, the Court adopts this
recommendation as well.
III. CONCLUSION
For the foregoing reasons, the Court sustains in part and overrules in part Blue’s objections
(Dkt. 50), rejects in part and accepts in part the recommendation contained in the magistrate
judge’s R&R (Dkt. 49), grants in part and denies in part Defendants’ motion for summary
judgment (Dkt. 23), and grants Defendants’ motion to dismiss (Dkt. 23).
SO ORDERED.

Dated: March 28, 2017
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on March 28, 2017.
s/Karri Sandusky
Case Manager

12